The opinion
{¶ 20} I respectfully dissent from the majority decision. I first particularly observe that this case does not essentially involve the handling of legal paperwork within a business or other entity outside of the daily practice of law, in which case the failure to respond to such documents might be viewed more leniently.
{¶ 21} In Smith v. Manor Care of Canton, Inc. , Stark App. Nos. 2005-CA-00100, 2005-CA-00160, 2005-CA-00162, 2005-CA-00174, 2006-Ohio-H82, we recited Browning v. Health Enterprises of America, Inc. (June 26, 1987), Crawford App. No. 3-86-1, for the proposition that "excusable neglect requires a finding of unique or extraordinary circumstances as opposed to a mere palpable mistake by counsel." Id. at ¶ 47. In Smith , we declined to find an abuse of discretion in the trial court's finding that "the departure of an associate from the firm and consequent mistaken belief a response had been filed does not constitute a unique or extraordinary circumstance." Id. at ¶ 47, 48. In the case sub judice, appellant's counsel averred that appellant's discovery responses were "misplaced" due to the absence of an office assistant. Majority Opinion at ¶ 14. Even if such a mistake by a law firm could be recognized as excusable neglect in light of Smith , we have before us the additional fact that neither appellant nor appellant's counsel took action in response to appellee's further motion to compel discovery and subsequent motion for sanctions. Generally, the greater the degree of willfulness of a movant, the less likely his or her conduct will be characterized as excusable neglect. See Mid-America Acceptance Co. v. Lightle (1989), 63 Ohio App.3d 590 , 607 . Accordingly, upon appellate review, I am unable to find the trial court abused its *Page 9
discretion in denying the 60(B) motion based on appellant's counsel's thrice-occurring discovery failures.
{¶ 22} I would therefore affirm.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Delaware County Court of Common Pleas is reversed, and the matter remanded to the trial court for further proceedings in accordance with the law and our Opinion. Costs to be divided. *Page 1